On February 24, 2023, China’s national legislature, the Standing Committee of the National People’s Congress (NPCSC), adopted a decision authorizing the Central Military Commission (CMC), China’s highest military authority, to “adjust” the way in which the Chinese military applies the Criminal Procedure Law [刑事诉讼法] during “wartime” (the Decision). That is admittedly (three-month-)old “news.” We did not write about it then because the Decision’s timing was not self-evident and the scope of its authorization unclear. Its accompanying explanation, we had hoped, would shed light on those questions, but it was not immediately released.
In the meantime, the Decision caught some commentators’ attention. A recent piece in Foreign Affairs deems the Decision a “legal change that hints at Beijing’s preparations [for war].” It speculates that the People’s Liberation Army (PLA) could use the Decision “to target individuals who oppose a takeover of Taiwan”; “to claim legal jurisdiction over a potentially occupied territory, such as a Taiwan”; or “to compel Chinese citizens to support [Beijing’s] decisions during wartime.” But the authors concede that “it is impossible to predict how the decision will be used.” Later, others, in the course of rebutting the Foreign Affairs article’s “China is preparing for war” argument, intimated that the Decision was the product of scholarly advocacy in 2022, while also lamenting that Beijing’s coyness about its intention behind the Decision had fueled speculations.
Recently, the Decision’s explanation (the Explanation) has been published in the NPCSC Gazette, the legislature’s official publication. It does somewhat clarify the direction of planned procedural changes, but important questions about the Decision’s timing and applicability remain. Below, we first provide a translation of the Decision, before turning to issues including the definition of “wartime,” the extent of military jurisdiction over civilians, and likely changes to military criminal procedure in wartime.
What does the Decision say?
The operative provisions of the Decision, which took effect on February 25, read:
To implement the sprits of the Party’s 20th National Congress, improve the system for law-based administration of military affairs with Chinese characteristics, and ensure that the people’s armed forces effectively fulfill their missions and tasks in the New Era and increase their ability to win in combat through legal institutions, the 39th session of the 13th [NPCSC] decides: In conducting criminal proceedings during wartime, the armed forces may adjust the application of certain specific provisions of the P.R.C. Criminal Procedure Law on jurisdiction, defense and representation, compulsory measures, case-filing, investigations, indictments, adjudication, and enforcement [of judgments], provided that they follow the basic principles, basic systems, and basic procedures under the P.R.C. Criminal Law and P.R.C. Criminal Procedure Law, adapt to the characteristics of wartime criminal proceedings, protect litigants’ lawful rights and interests, and safeguard judicial fairness and justice. The specifics are to be prescribed by the Central Military Commission.
为贯彻落实党的二十大精神，完善中国特色军事法治体系，从法律制度上保障人民军队有效履行新时代使命任务、提高打赢能力，第十三届全国人民代表大会常务委员会第三十九次会议决定：军队战时开展刑事诉讼活动，遵循《中华人民共和国刑法》、《中华人民共和国刑事诉讼法》确定的基本原则、基本制度、基本程序，适应战时刑事诉讼特点，保障诉讼当事人合法权益，维护司法公平正义，可以调整适用《中华人民共和国刑事诉讼法》关于管辖、辩护与代理、强制措施、立案、侦查、起诉、审判、执行等部分具体规定。具体由中央军事委员会规定。
Why now?
The CMC likely saw obtaining the authorization as a legal and political imperative. It wrote in the Explanation that the Decision was necessary to fill a purported void[1] in China’s military legislation:
Since the enactment and implementation of the Criminal Procedure Law in 1979, our country’s legislation on special criminal procedure during wartime has been nonexistent. To effectively fulfill the people’s armed forces’ missions and tasks of “Four Strategic Supports,”[2] it is necessary to make appropriate adjustments to the military’s enforcement of the P.R.C. Criminal Procedure Law during wartime while adhering to its basic principles, basic systems, and basic procedures, so as to promote the formation of a wartime military justice system unified in maintaining battlefield order and ensuring fairness and justice.
And such legislative urgency appears attributable to the Party’s “strategy to govern the military according to law” [依法治军战略], an initiative coined at the 2021 Sixth Plenum. According to a speech Xi Jinping gave to military delegates at the 2022 NPC session, that strategy requires, among other things, developing “a system for law-based administration of military affairs with Chinese characteristics” [中国特色军事法治体系]—a goal reiterated in the 20th Party Congress report and incorporated into the Decision itself. The strategy also requires implementation of the Xi Jinping Thoughts on Strengthening the Military and on the Rule of Law, both of which are invoked by the Explanation in a later paragraph.
The legislature has indeed ramped up legislation on military affairs under Xi. In the last five years alone, it enacted no fewer than 10 pieces of military legislation: new Veterans Protection Law (2020), Coast Guard Law (2021), Law on the Protection of the Status, Rights, and Interests of Servicemembers (2021), Decision on the Ranks for Active-Duty Enlisted Personnel in the PLA (2022), and Reservists Law (2022); revisions to the People’s Armed Police Law (2020), National Defense Law (2020), Military Facilities Protection Law (2021), and Military Service Law (2021); and a decision authorizing pilot reforms of the national defense mobilization system (2021). Several of those laws also have wartime provisions.
What counts as “wartime”?
In the absence of the Decision’s authorization, the military must follow the provisions of the Criminal Procedure Law, such as they are, in both peacetime and wartime, so an important threshold issue is when “wartime” [战时] exists, thus triggering the “adjusted” procedures the CMC will prescribe.
The Decision itself does not define the term, so we must look elsewhere. Article 451 of the Criminal Law [刑法] (China’s substantive criminal code) defines “wartime” as a period in which “the State has declared a state of war,” “troops have received combat missions,” or they “are suddenly attacked by the enemy.” Under that Article, a period during which troops enforce the martial law or “handle sudden incidents of violence” is deemed “wartime” as well.
It is important to note that the Criminal Law defines “wartime” only as a substantive element of two classes of crimes: (1) the crimes of endangering national defense interests (Part II, Chapter VII), such as spreading rumors to undermine morale among troops during wartime; and (2) the crimes of breach of duties by servicemembers (Part II, Chapter X), such as desertion during wartime.[3]
“Wartime” as a switch that activates different procedural rules does already exist in Chinese law. While the relevant legal document did not define the term, its official commentary borrowed the Criminal Law’s definition.[4] Given this precedent, the CMC is likely to interpret “wartime” under the Decision in the same way. At the very least it is expected to define the term to cover more than a de jure state of war, because in the Explanation it referenced “our military’s experience in law enforcement and judicial administration in wartime” when the PRC has never formally declared war.
Could courts-martial try civilians in wartime?
The definition of “wartime” aside, another threshold question is the extent of wartime court-martial jurisdiction. More specifically, the question on people’s mind is, under what circumstances does the military justice system have jurisdiction over civilians during wartime?
Under 2009 provisions jointly issued by China’s top civilian and military justice authorities, courts-martial cannot try civilians,[5] although military investigators have some authority to detain and investigate civilian suspects in certain cases involving both the military and civilians. For example, when a civilian is caught committing a crime on a military base or is “strongly” suspected of having done so, the military may take “emergency measures” to detain the suspect and gather evidence, but within 24 hours of ascertaining their civilian status, must hand them over to civilian authorities.
Under the same provisions, the military has broader investigative powers in wartime. When a civilian criminally “endangers military interests” or “jeopardizes the security of military operations” during wartime, military investigators may make use of all the investigate tools available under the Criminal Procedure Law, and need not turn the suspect over to civilian authorities until they have ascertained “the main facts of the crime.” As in peacetime, any further investigation, prosecution, and trial will be conducted by civilian authorities.
The Decision authorizes the CMC to adjust the Criminal Procedure Law’s jurisdictional provisions in wartime, but it is unclear how the CMC plans to do so. In the Explanation, it stated only in general terms that it would
clarify the scope of military jurisdiction during wartime and, in accordance with the duties of military courts and procuratorates under the Constitution, the People’s Courts Organic Law, and the People’s Procuratorates Organic Law and by summarizing our military’s experience in wartime law enforcement and judicial administration, strictly and prudently determine who will be subject wartime military justice.
Experts attending the 2022 Forum on Military Law organized by the PLA National Defence University argued for extending wartime court-martial jurisdiction to, among others, prisoners of war and occupied territories outside the PRC. These proposals echo those found in Chinese military law scholarship over the years[6] and could be among the changes the CMC ends up adopting.
It is less likely that the CMC could unilaterally expand wartime court-martial jurisdiction to cover civilians in PRC territory, as the 2009 provisions suggest it would need the consent of civilian authorities, but the latter have not been given the same authorization.
What other changes would the CMC make?
The list of subject matters the CMC is authorized to adjust—“jurisdiction, defense and representation, compulsory measures, case-filing, investigations, indictments, adjudication, and enforcement [of judgments]”—just about covers everything in the Criminal Procedure Law.
The only limitation on the authorization is that the CMC must not deviate from the Criminal Law’s or Criminal Procedure Law’s “basic principles, basic systems, and basic procedures.” These could include the fundamental tenets that the defendant is entitled to a defense and to an appeal, the prosecution bears the burden to prove guilt, no one may be found guilty except by a properly constituted court, and criminal punishments cannot be increased on appeal.
The Explanation offers some detail on four contemplated changes, the general tenor of which is to minimize disruption to combat operations by improving the efficiency of proceedings and expanding the use of clemency procedures.
- Letting military commanders play a role in wartime criminal process. The Criminal Procedure Law vests criminal investigative powers in the military’s security departments and procuratorates only, and CMC rules further require that major investigative decisions (e.g., opening or closing a case, placing servicemembers in custody) be approved first by the relevant military unit’s political work department and then by its Communist Party committee.[7] As far as we can tell, commanding officers currently play no formal role in the military criminal process—something the CMC is seeking to change. According to the Explanation, the CMC will regulate military commanders’ participation in the wartime military justice system so that they can “effectively deter crime, promptly preserve evidence, . . . and ensure the security of combat operations and the smooth conduct of litigation.”
- “Clarifying” the procedures for issuing non-prosecution decisions. The Criminal Law Procedure’s non-prosecution rules allow—and sometimes require—a procuratorate to not indict a particular suspect. The issuance of a non-prosecution decision is mandatory when, for instance, the statute of limitations has expired, and is discretionary when, for instance, the circumstances of the accused’s crime are “slight” and they may be exempted from criminal punishment. By “clarifying” non-prosecution procedures, the CMC aims to “maximize protection for the troops’ strength, simulate their fighting spirit, and boost morale.” It thus sounds like the CMC will not so much “clarify” as “expand” use of this leniency measure.
- Broadening the applicability of summary and expedited procedures. “Summary procedures” [简易程序] and “expedited procedures” [速裁程序] are both abridged procedures that shorten criminal trials. At a high level of generality, the former applies in most cases where the accused does not dispute the facts alleged, and the latter applies when the accused has pleaded guilty to a minor offense and accepted the prosecution’s sentencing recommendation. The CMC looks to expand use of those procedures during wartime to “conserve judicial resources and increase the efficiency of litigation.”
- Improving the procedures for “redemption by meritorious service.” “Redemption by meritorious service” [戴罪立功] is a special process under the Criminal Law whereby a convicted servicemember can have their wartime conviction vacated by performing “a meritorious service,” if the servicemember has received a suspended sentence of up to three years and does not pose a “present danger” to the military. This clemency measure appears to currently operate under internal procedural rules issued by the former PLA General Political Department in 2007.[8] By further “improving” the process (and potentially expanding its use), the CMC hopes to “educate and motivate combatants to fight heroically.”
The CMC states in the Explanation that it will also “adjust or supplement” provisions on “defense and representation, legal aid, judicial authentication [e.g., psychiatric evaluation], and special procedures” in light of wartime conditions. Though the Explanation did not further elaborate, attendees of the 2022 Forum on Military Law discussed one of those subjects: procedures for trial in absentia (one of five types of “special procedures” under the Criminal Procedure Law). The experts proposed applying trial in absentia procedures to those like wartime deserters or defectors who cannot appear in court. Currently, such procedures apply only cases of corruption or bribery and, when approved by the Supreme People’s Procuratorate, cases of serious national security or terrorism crimes, where the accused has fled abroad.
Will we ever find out the specific adjustments the CMC ends up making? Probably not, as there is no publication requirement for the legislative rules issued by China’s military authorities (which are supposed to apply only within the armed forces). Case in point: the CMC’s latest provisions on the military’s implementation of the Criminal Procedure Law, adopted last December, have not been made public. So the information in the Explanation may well be the full extent of what we will ever know about the CMC’s changes to wartime court-martial rules.
[1] Apparently, in 2007, the now-defunct PLA General Political Department—which oversaw the military criminal justice apparatus—issued rules on the military’s implementation of the Criminal Procedure Law during wartime. Those rules have not been made public, but according to one PLA-affiliated scholar, they provided for “wartime investigative and litigation procedures” and included provisions that adopted an “expansive interpretation” [扩大解释] of the Criminal Procedure Law—which the scholar thought might have exceeded the Department’s legislative authority. See Hu Weiping [胡卫平], On Military Investigative Power and Its Military Nature [试论军队侦查权及其军事属性], J. Xi’an Pol. Inst. [西安政治学院学报], 2013, no. 5, at 102, 106. Another scholar more bluntly states that some of the 2007 rules “conflict” with the Criminal Procedure Law. Thus, an unstated reason for adopting the Decision could be to cure that legal defect by supplying the CMC with the necessary legislative authority. That is exactly why the CMC in 2022 asked the NPCSC to legislate on enlisted ranks, which, contrary to what the Constitution requires, had been governed only by joint CMC and State Council regulations.
[2] The “Four Strategic Supports” refers to the PLA’s duties to provide strategic support for consolidating the Communist Party’s leadership and the socialist system; for safeguarding national sovereignty, unity, and territorial integrity; for protecting China’s overseas interests; and for promoting world peace and development.
[3] By its own terms, Article 451’s definition of “wartime” applies only to the crimes under Chapter X, but not to those under Chapter VII. In an authoritative commentary on the Criminal Law, the NPCSC Legislative Affairs Commission is nonetheless of the view that Article 451 should apply to both classes of crimes. See, e.g., Annotations of the Criminal Law of the People’s Republic of China [中华人民共和国刑法释义] (Wang Aili [王爱立] ed.) 840 (2021).
[4] See Understanding and Applying the Provisions on Handling Criminal Cases Involving Both the Military and Civilians [《办理军队和地方互涉刑事案件规定》的理解与适用] 38–39 (Law Press China [法律出版社] 2010).
[5] The Supreme People’s Court’s 1998 interpretation of the Criminal Procedure Law provided that, if a criminal case with both military and civilian defendants involves “national military secrets,” a court-martial has jurisdiction over the whole case. This provision no longer appears to be good law after the 1998 interpretation was repealed in 2013.
[6] See, e.g., Jia Wanbao [贾万宝], Thoughts on Improving China’s System of Military Criminal Jurisdiction in Wartime [对完善我国战时军事刑事诉讼管辖制度的思考], J. Xi’an Pol. Inst., 2010, no. 5, at 67, 69–70; Xie Dan [谢丹] & Xu Zhanfeng [徐占峰], On a Limited Expansion of Military Judicial Power in Wartime [论战时军事司法权的有限扩张], J. Xi’an Pol. Inst., 2007, no. 1, at 46, 46; Li Ang [李昂] & Liu Wenchang [刘文昌], On the Legal System of Military Criminal Procedure in Wartime [论战时军事刑事诉讼法律制度], J. Xi’an Pol. Inst., 2000, no. 6, at 50, 52.
[7] See Hu, supra note 1, at 106.
[8] See, e.g., You Yanan [游雅南], Research on Several Questions of Wartime Military Criminal Procedure [战时军事刑事诉讼若干问题研究], People’s Trib. [人民论坛], 2010, no. 11, at 98, 99.